2) In an August 31, 2016, Memorandum, the Whatcom County Administration has asked the Whatcom County Council to approve/authorize the County Executive to sign contract Amendment No. 5.1 to contract No. 201205028 that would extend the contract for the preparation of the EIS for the Gateway Pacific Terminal (GPT) and Custer Spur Modification project for 180 days, or to March 13, 2017, whichever occurs first.

3) The Lummi Indian Business Council sent a January 5, 2015 letter to the United States Army Corps of Engineers, asking the agency to immediately deny PIT’s permit application for the proposed GPT at Xwe’chi’eXen (Cherry Point), based, inter alia, on the project’s adverse impacts on the treaty rights secured to Lummi people by the Treaty of Point Elliott of 1855.

4) On April 1, 2016, Pacific International Terminals (PIT) invoked a contract clause to suspend, for an initial 45-day period, contract No. 201205029 between Whatcom County, PIT, and BNSF for Reimbursement of Costs and Fees associated with the EIS preparation for the GPT project.

5) On May 9, 2016, the U.S. Army Corps of Engineers determined the potential impacts from the construction of the GPT facility would be greater than di minimis to the Lummi Nation’s Usual and Accustomed (U&A) treaty fishing rights, and the Lummi maintain their objections to the proposal, the agency determined it cannot permit the GPT project.

6) Without the federal permit denied by the U.S. Army Corps of Engineers the GPT project, as applied for by PIT, cannot be constructed.

7) PIT President Bob Watters sent a May 10, 2016, letter to Whatcom County, requesting the County “extend the suspension [of the EIS preparation] for 180 days, with another automatic 180-day extension if the issues have not been resolved by that time” in order to “allow time for us to review and pursue alternative actions.”

8) Contract No. 201205029 was set to expire on May 30, 2016, Whatcom County administration sent a May 26, 2016 email to PIT and BNSF, as written verification, agreeing to a 60-day extension, “to allow [applicants] the necessary time to decide upon and amend the contract to accomplish one of the following options;

1. Prepare and execute any of the documents necessary to extend the contract for the time necessary, not to exceed 180 days, to accomplish the GPT Suspension Work Plan as outlined in a April 15, 2016 email from Kristen Smids at CH2M Hill
2. Sign Amendment #6, as presented in a April 18th, 2016 email to you and Skip Kalb and move forward and complete the preparation of the SEPA draft EIS.”

9) On June 6, 2016, the Washington State Department of Natural Resources officially denied the aquatic lands lease needed by PIT for its GPT project.

10) Without the lease denied by the Washington State Department of Natural Resources, the GPT project, as applied for by PIT, cannot be constructed.

11) Contract No. 201205028, between Whatcom County and EIS consultant CH2M Hill was set to expire on July 25, 2016, CH2M Hill sent a July 22, 2016 letter to Whatcom County, requesting a six-month no-cost extension (to January 25, 2017) to the contract to allow the GPT applicant/s to continue to consider their options for going forward.

12) Contract No. 201205028 and contract No. 201205029 were set to expire on August 30, 2016, the County sent a July 22, 2016 email, as written verification, agreeing to extend the contracts through August, 31, 2016 “to allow for the necessary time to continue discussing and likely to amend the contract to accomplish the following or something similar;
“Prepare and execute any of the documents necessary to extend the contract for the time necessary, not to exceed 180 days, to accomplish the GPT Suspension Work Plan as outlined in a April 15, 2016 email from Kristen Smids at CH2M Hill.”

13) As outlined in contract No. 201205028, Whatcom County, PIT, BNSF, and CH2M Hill, mutually agreed to extend the contract 180 days, or to March 13, 2017, whichever occurs first, “to accomplish ramp-down contract activities to ensure that the work and contracts are closed out in an orderly fashion and can beefficiently resumed at a future date” [Emphasis mine]

14) By September 13, 2016, GPT applicants PIT and BNSF will have already been given more than ample opportunity and time by Whatcom County Administration to consider their options, pursue alternative actions, and make decisions.

15) The U.S. Army Corps of Engineers has already determined that construction of the GPT facility would violate the Lummi’s U&A treaty fishing rights.

16) Article VI of the U.S. Constitution establishes that “Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”

17) The seven Whatcom County Council members, and the Whatcom County Executive are elected officials who were sworn into office, and each solemnly swore or affirmed “to support the Constitution of the United States and the Constitution and laws of the state of Washington.”

18) Therefore, the Whatcom County Council cannot approve, or authorize, the Whatcom County Executive to sign the attached contract Amendment No. 5.1 to contract No. 201205028.